Latest in military detention
Note: The author is a member of Abu Zubaydah’s legal team. Joseph Margulies, Mark Denbeaux and Helen Duffy, who also represent Abu Zubaydah, have contributed to this article.
American Civil Liberties Union Foundation v. Mattis is a would-be habeas corpus petition brought by the ACLU Foundation on behalf of an unnamed American citizen whom the U.S. government has been holding in military detention in Iraq since September.
On October 30th, the Senate Committee on Foreign Relations will hold a hearing titled "The Authorizations for Use of Military Force: Adminstration Perspective," featuring Secretaries Mattis and Tillerson. This is a good thing. We should have an updated AUMF. But, failing that, we should at least have regular and serious hearings in which Congress elicits information about how the President currently construes these authorities.
The Department of Defense has regulations for everything, and detention is no exception. The key policy document for detention operations is Department of Defense Directive Number 2310.01E ("DODD 2310.01E"). This directive, titled "DOD Detainee Program," functions as a general framework for all DOD detainee operations, with extensive reference to both legal and policy obligations applicable in such circumstances.
Two weeks ago, the U.S. military received custody of an as-yet unnamed American citizen who had been captured in Syria by a Syrian Defense Force (SDF) fighter. The Pentagon soon confirmed that the person is being held in military detention as an enemy combatant, somewhere in theater, on the basis that he was a fighter for the Islamic State. Many days had gone by without further information, until today.
DOD has confirmed that an (as-yet-unidentified) American citizen is being held in U.S. military custody in Syria or Iraq as an enemy combatant. More specifically, the available information asserts that he was a fighter for the Islamic State who was captured in Syria by U.S.-friendly forces (or at least surrendered to those forces), and was then turned over to the U.S.
How significant is this development from a legal perspective?